Uncontested Divorces: Finding The Right Attorney

November 28, 2014 by [email protected] Leave a Comment

This is part of the ongoing Guide to Uncontested Divorces.

Finding the Right Attorney for an Uncontested Divorce

If you are thinking about an agreed divorce, you need to make sure you find the right attorney. There are several factors that will be important: the experience of the attorney, the attorney’s fee, and whether the attorney will charge a flat rate or an hourly rate.

Experience with the Fayette County Family Court Rules

Experience is always important with an attorney. It is especially important with a divorce attorney, even if you are planning on doing an agreed divorce. Be careful if you are choosing an attorney who is not experienced with divorces. Divorces are more complicated than many attorneys realize, and it is very important that they be done correctly.

Make sure the attorney you select is familiar with the statewide divorce statutes and the family court rules.

When choosing a divorce attorney for an uncontested divorce, you should choose an attorney that has experience in Fayette County. Every county has different local rules. This means that the divorce process is different in each county.

Fayette County has rules that frequently trip attorneys up. For example, Fayette County requires in any uncontested divorce that the Decree of Dissolution be signed by both sides. Many counties don’t require this. Another unusual rule is the requirement that the Property Settlement Agreement say the precise phrase “Approved and Incorporated by Reference.”

I used to be the staff attorney for the Chief Judge of the Fayette County Family Courts, and I frequently saw out of town attorneys submit uncontested divorces that violated the rules. The pleadings were rejected. Even attorneys in Lexington frequently violated the rules.

The moral of the story? Pick an attorney who has done divorces in Fayette County, and who understands Fayette County’s local rules.

Flat Fee Attorney vs. Hourly Rate

Another choice you will have to make is whether to hire an attorney who charges a flat rate or an hourly rate. Most attorneys charge an hourly rate. Some (like me) offer a flat rate.

Hourly Rate Divorces

If you pick an attorney that charges an hourly rate, you will probably have to pay a retainer fee. The retainer fee (usually $2,000 or more) will go into the attorney’s IOLTA account. When the attorney works on your case, they will bill their time. At the end of the billing cycle, they will bill you for the time they spent on your uncontested divorce, and transfer that money out of their IOLTA account.

How much you spend on the uncontested divorce will depend on how much your attorney works. You will not know the cost of your divorce until you receive your final billing statement from your attorney after the Decree of Dissolution has been granted in your uncontested divorce.

Flat Rate Divorce Attorneys

A flat rate is called a “non-refundable retainer.” Flat rates are still somewhat unusual, at least among Fayette County attorneys. I do offer a flat rate for agreed divorces, but I am probably in the minority.

The advantage of a flat rate is that no matter how long the attorney work on your agreed divorce, you know how much you will pay up front. The disadvantage is that if some disagreement arises, it will not be covered, and you will have to pay another retainer fee.

Conclusion

I hope this helps you decide on an attorney to handle your uncontested divorce. Feel free to read more advice on uncontested divorces in my Guide to Uncontested Divorces.

The Fayette Family Court System

November 16, 2014 by [email protected] Leave a Comment

Thomas Cothran is an attorney who practices in family law, focusing on uncontested divorces. This is part of his Guide to Uncontested Divorces.

The Fayette County Family Court system handles all divorces, whether contested or not. The Family Courts handle most family matters. Divorces are handled on the civil docket. Family judges also handle domestic violence cases, neglect or abuse cases, and status cases.

What Lexington Judges Handle Uncontested Divorces?

If you pursue an uncontested divorce, your case will be randomly assigned to one of the four Fayette County Family Court judges. The names of the judges are:

Honorable Timothy Philpot, Division 1
Honorable Judge Schrader, Division 2
Honorable Lucinda Masterton, Division 3
Honorable Kathy Stein, Division 4

If you or a spouse have previously had a case in the Fayette Family Court system, your case will be handled by the same division that case was in. This is called the “one family, one judge” rule.

Local Fayette County Rules for Uncontested Divorces

There are several sets of rules for contested and uncontested divorces. First, there are the statewide statutes. These are mostly found in KRS Chapter 403. Then there is the statewide Family Court Rules. Finally, there are the local family court rules.

Any uncontested divorce has to strictly follow both the statewide and the local rules. You can find Fayette County’s local rules here.

Contact Information for Fayette County Family Courts

To contact the Fayette County Family Courts, use the following contact information. Note, however, that no-one at the courthouse can answer any legal questions or give legal advice. For that you need a family lawyer.

General contact number: 859-246-2789. Most family court functions are in the Circuit Courthouse, located at 120 North Limestone, Lexington, KY 40507.
Fayette County Circuit Clerk’s office: 859-246-2141. Located on the first floor of the circuit courthouse.
Fayette County Domestic Violence clerks: 859-246-2248. Located on the fourth floor of the District Courthouse.
Fayette County Juvenile clerks: 859-246-2234. Located on the fourth floor of the District Courthouse.

View the map with the Fayette Circuit Courthouse below:

Uncontested Divorces in Lexington, KY: The Guide

November 15, 2014 by [email protected] Leave a Comment

Thomas Cothran is an attorney who practices family law in Fayette County, Kentucky. This guide explains what an uncontested (or agreed) divorce is, what the process is like, and how to prepare for one.

Are you thinking about getting a divorce, but think you and your spouse can agree on everything? Then this guide is for you.

There are two kinds of divorces: contested and uncontested divorces. In a contested divorce, the husband and wife do not agree about division of property, custody of children, or some other matter. An an uncontested divorce, the spouses do agree on everything.

Uncontested divorces have two advantages: First, they don’t involve ugly court fights. Second, they are usually cheaper. For example, my standard rate for an uncontested divorce is $750, while I charge at least $2,000 to even start on a contested divorce. (And my prices are on the middle-lower end of the spectrum in Lexington.)

The Court System

All divorces in Lexington are filed in the Fayette County Family Courts. There are four family Judges in Fayette County: Judge Philpot, Judge Masterton, Judge Schrader, and Judge Stein.

The Family Courts handle all family matters, including domestic violence, neglect or abuse, child support cases, and status offender cases. There is a “one family, one judge” rule. What this means is that if you have any kind of family case in Fayette County, you will be assigned a judge. That judge will handle any type of family case you have in Fayette County after that. For example, if there was a domestic violence case and you later file for divorce, the same judge will handle both cases.

The Process for an Uncontested Divorce.

If you are serious about getting a divorce, the first thing you need to do is figure out whether your divorce will be contested or uncontested. You can discuss with your spouse any issues relating to the division of property, maintenance (a.k.a. alimony), child custody, and child support. If it appears you and your spouse care agreed on everything, the next step is to talk to an attorney.

Selecting an attorney for an uncontested divorce

There are several factors to consider in selecting an attorney for an uncontested dissolution. You need to choose an attorney who practices in the area of family law. Choosing an attorney with no experience doing divorces can easily turn into a train wreck.

You also need to choose an attorney who practices in Lexington, or is familiar with the Fayette County Family Court rules. Every county has different rules for how it handles divorces. Fayette County’s rules are more complicated than the surrounding counties. If an attorney does not follow the Fayette County’s local rules, your divorce can be delayed.

Finally, you may want to choose an attorney that charges a flat rate, rather than an hourly rate. If a divorce is uncontested, an attorney can offer a flat rate so you know exactly how much you are paying. For example, I charge a flat rate of $750 for uncontested divorces.

Once you have selected an attorney, contact them to set up an appointment. You may have to call the office. I also provide the option where new clients enter their contact information, and then I contact them to set up an appointment.

Filing an Uncontested Divorce

So what does the uncontested divorce process look like after you’ve hired an attorney? First, the attorney will require you to execute a retainer agreement and pay the retainer fee. The retainer agreement creates the attorney-client relationship. The retainer fee could be an hourly rate or a flat fee. I use a flat fee so that people know exactly how much they will spend, but many other attorneys use an hourly fee.

After you hire your divorce attorney, they will collect information from you so that they can draft the divorce paperwork. Some attorneys will require you to bring all the necessary information to their office. I find it easier to use a a questionnaire. The client can take the questionnaire home and work through it at their own pace.

After you provide the necessary information to the attorney, the attorney will file the divorce at the Fayette County Circuit Court Clerk’s office. The filing will contain the Petition for Dissolution and a few other documents, such as entries of appearances and vital statistics forms. Once the Petition has been filed, your uncontested divorce has begun.

In order to conclude the divorce, you will need to sign a number of documents. The most important of these is the Property Settlement Agreement. The Property Settlement Agreement will divide your property and debts, establish the custody of children, set a timesharing schedule, and set child support.

Both parties need to sign the Property Settlement Agreement. It is very important you read it carefully. It will be incorporated into the Decree of Dissolution and have the force and effect of a court order. That means if you disobey it, you can be in contempt of court.

You can get a divorce in Fayette County without having to go in for a hearing. Your attorney will have you sign the necessary documents to request the divorce by conducted by written deposition. You will sign a deposition that will have your testimony that you would have given in family court..

Dividing Property in an Agreed Divorce

If you think you and your spouse can agree on the terms of a divorce, you need to talk very specifically how you will divide your property in your marital estate.

What is the marital estate?

Roughly speaking, the marital estate includes all property and debts that either spouse acquired during the marriage, except for any gifts or inheritances. Note that gifts are only an exception if they are specifically given to just one spouse. As a general matter, each spouse is entitled to half of the marital estate.

You and your spouse need to make sure that you agree on how to divide all of the property in your marital estate, including any real estate, retirement accounts, insurance policies, household items, business interests, investment instruments, cash, bank accounts, and pets.

What about alimony?

In Kentucky, alimony is called “maintenance.” A majority of divorces, whether uncontested or contested, do not result in one spouse paying maintenance to another. If maintenance is ordered, it generally runs for a relatively short period of time. But in an uncontested divorce, maintenance can be useful when splitting up property would otherwise result in one side having much less than the other.

Child Custody and Timesharing

If you think your spouse will agree to an uncontested divorce, you need to make sure you are on the same page when it comes to the children. Children are more important than property, and it is very important to have an agreement that will be workable into the future and not result in future conflict.

There are two aspects that people often confuse when it comes to children in a divorce: custody and timesharing.

Child Custody in Agreed Divorces

Custody refers to who gets to make important decisions concerning the children. It does not refer to where the children spends most of their time.

Joint custody means that both parents have to agree on any major decision involving the children. The parents need to be able to co-parent and make important decisions to things like school, medical treatment, and so on. Joint custody is the default arrangement in Kentucky, and there should be a good reason to give any parent sole custody.

Sole custody means that one parent has the authority to making decisions for the children. That parent gets to decide where the children go to school, who their doctor is, and so forth. Note, however, that the parent without custody can still appeal to the family court if he disagrees with the decision of the custodial parent.

In an uncontested divorce, the parents need to be able to agree on who should have custody.

Timesharing in Agreed Divorces

Timesharing refers to where the children spend their time. There are a number of different timesharing arrangements. Many parents do week on/week off timesharing, where the children spend one week with one parent and the other week with the other parent.

The Fayette County Guidelines have a scenario where one parent is the primary residential parent. The children spend only every other weekend and occasional weekdays with the other parent.

In an uncontested divorce, the parents can agree to the timesharing schedule that suits them. The Fayette County Guidelines are not binding on them, and other arrangements may work better for your situation.

Ready to talk to a lawyer about an uncontested divorce?

I offer a special deal on uncontested divorces. You can also click up “Set Up An Appointment” or “Get a Free Online Consultation.”

Resources in Lexington

Here are some resources that may help you, if you are thinking of getting an uncontested divorce in Lexington, KY.

Fayette Family Court Homepage

Fayette Family Court Docket Schedule

Fayette Family Court Local Rules

Kentucky’s Family Court Rules

Fayette County’s Circuit Courthouse Information

And, finally, the Google Maps link to the Fayette Circuit Courthouse:

Medicaid’s Penalty Period for Gifts

November 12, 2014 by [email protected] Leave a Comment

Thomas Cothran is an attorney who practices elder law and medicaid planning in Lexington, KY. This article is for informational use only. You should speak to an attorney before taking action. Note that any answers apply to Kentucky only. Medicaid regulations can differ state by state.

Q. My father gave me real estate last year. Now he’s going into a nursing home, and they are saying that gift creates a penalty period. Is he disqualified from Medicaid? What do we do?

A. As a general rule, when someone gives a gift within five years of applying for Medicaid, there is a penalty period. A penalty period is not a criminal offense. It simply means that there is a certain period of time for which Medicaid will not pay for nursing home care.

A few general facts to keep in mind: Medicaid is not Medicare. Medicaid is generally superior to Medicare for nursing home care. The catch is that Medicaid is harder to qualify for. That’s why Medicaid planning attorneys exist: to qualify people for Medicaid while preserving their assets to the fullest extent permitted by law.

How Medicaid’s Penalty Periods Work.

Medicaid’s penalty period is calculated by taking the value of the gift and dividing it by the transferred resource factor. Kentucky’s 2014 transferred resource factor is $196.52 per day. Medicaid’s penalty period is calculated by dividing the value of the gift by the transferred resource factor. Note that the annual exemption amount for gift tax purposes does not exclude a gift from being counted by Medicaid.

Let’s take a simple example. Alice gives her son, Bob, a $20,000 gift on January 1, 2014. On February 1, 2014, she qualifies for Medicaid, but for the gift. The gift generates a penalty period of approximately 101 days. This means that Medicaid will not pay for nursing home care during that penalty period.

Options When Medicaid Assessed A Penalty Period

So what are your options? Bob could return the $20,000 gift to Alice. Under federal law, the return of a gift eliminates the penalty period. The problem is that Alice now no longer qualifies for Medicaid, because her assets exceed the allowable limit.

A second option is that Bob could pay for Alice’s care out of the $20,000 gift. One problem that frequently arises, however, is that the cost of the care will exceed the gift.

A third option is for Bob and Alice to use a Medicaid planning technique called gift and return. This involves invoking the penalty period and then returning the gift in such a way that a sizeable percentage of the gift is saved.

It is important to use any of these options under the supervision of an attorney.

Medicaid Planning: Use Medicaid to Pay for Nursing Home Costs in Kentucky

August 5, 2014 by [email protected] Leave a Comment

Medicaid planning is a method that lawyers use to help you pay for nursing home care with Medicaid while protecting your assets.

Who Needs Medicaid Planning?

If you cannot afford the cost of nursing home care, you probably need to talk to an elder law attorney about Medicaid planning. Nursing homes in Lexington, KY (where I practice law) average more than $70,000 per year.

Medicaid will foot the bill for long term care in a rest home. But first, you have to qualify for Medicaid. In order to do that, you have to have very few resources.

If you do not do any Medicaid planning, you may have to sell all your property to pay for nursing home care. Medicaid planning can help you hold on to your property, or pass it on to your family. Medicaid planning can also make sure that you have resources for yourself during a nursing home stay.

How Do I Qualify for Medicaid in KY?

The basic requirements to qualify for Medicaid are (roughly) the following:

Your nursing home participates in Kentucky’s Medicaid program
You require nursing home level of care
You are over 65, disabled, or blind
Your income is less than the cost of the nursing home
You have less than $2,000 in “non-exempt” assets

Note that the technical requirements are somewhat more complex.

What if I have more than $2,000 in Assets?

Chances are, you have more than $2,000 in assets. This is where Medicaid planning becomes particularly important. Careful Medicaid planning can help you qualify for Mediciad even if you start out with more than $2,000 in assets.

Medicaid planning protects your assets

If you plan far enough in advance, you may be able to protect almost all your assets by giving them to your family or placing them in the right kind of trust. Do not do this unless you are under the guidance of an elder law attorney. Doing this by yourself may result in penalties.

Any gift made within five years of applying for Medicaid falls into the “look-back” period, and you can be penalized for making the gift.

If you did not do any Medicaid planning in advance, you may still be able to protect many of your assets. There are several options available, including paying for nursing home care until the “look-back” period passes, actually creating a penalty and using annuities to cover nursing home costs while the penalty runs, or the “gift-and-return” method that uses the return of gifted money to shrink the penalty period.

Medicaid planning is not something to do on your own. The advice in this article is very general, and you need to talk to an elder law attorney about your specific situation. Contact an elder law attorney who practices in Kentucky if you think that nursing home care might be in your or a family member’s future.

Thomas Cothran is an attorney who practice elder law in Lexington, KY.

Resources

Thomas Cothran – Elder Law and Medicaid Planning Attorney

Medicare’s Web Page for Nursing Homes

42 U.S.C. § 1395

42 C.F.R. § 409.61